The Subcommittee of on Employment, Safety and Training Health, Education, Labor, and Pensions Committee United States Senate

 Speaker:

Jeffress, Charles N.

 Status:

Archived

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

STATEMENT OF CHARLES N. JEFFRESS
ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
BEFORE
THE SUBCOMMITTEE ON EMPLOYMENT, SAFETY AND TRAINING
HEALTH, EDUCATION, LABOR AND PENSIONS COMMITTEE
UNITED STATES SENATE

March 4, 1999

Mr. Chairman, Members of the Subcommittee, thank you for inviting me to testify about S. 385,
the SAFE Act, a proposal to amend the Occupational Safety and Health Act of 1970. I
appreciate the opportunity to express OSHA's views on this bill. I would also like to take this
opportunity to express my appreciation to you, Mr. Chairman, for your efforts to find common
ground on these important issues. Although you have modified your proposal, the Department
remains unable to support your bill.

OSHA Works

OSHA's core mission is to ensure a safe and healthy workplace for every working man and
woman in the Nation. We are most pleased by the latest occupational injury and illness statistics.
For the fifth consecutive year, the rate of injuries and illness has declined. In fact, the rate for
1997 was the lowest since the Bureau of Labor Statistics (BLS) began reporting this information
in the early 1970s. The improvement is particularly impressive in a booming economy when
many new and inexperienced workers are coming into the workforce. Historically, new
employees have been more likely to get hurt on the job than more experienced workers. Much of
the credit for the improvement can be attributed to millions of employers and employees working
every day to eliminate on-the-job hazards. I am proud that OSHA has been a catalyst to help
these private sector efforts, using results-driven enforcement efforts, compliance assistance and
standard setting to bring about workplace improvements.

Many challenges remain, but this message is clear. The New OSHA works. In the four years
since President Clinton announced the "New OSHA" initiative, which combines targeted
enforcement with partnerships and compliance assistance, we have developed a broad range of
successful partnership programs. The New OSHA is doing more to promote cooperative
partnership efforts between employers, workers and government.

OSHA joined with industry last November to hold a partnership conference celebrating the
positive impact strategic partnerships, the Safety and Health Achievement Recognition Program
(SHARP) and the Voluntary Protection Program (VPP) have on protecting employees and
lowering workers' compensation costs for employers. In one success highlighted during the
conference, OSHA worked with the Steel Erectors' Safety Association of Colorado (SESAC) tochange a contentious relationship. According to the president of Ridge Erectors, a SESAC
participant, the new approach has "effectively taken an adversarial position that's been historic
between business and OSHA and turned it into a partnership agreement where we work together
to enhance education and we work together to provide a safe workplace." Many of the SESAC
members have reduced injuries and illnesses at their workplaces and have lowered their workers'
compensation costs. Calcon Constructors, for example, reduced its workers' compensation rate
by almost two-thirds, saving sixty-three cents on every dollar in workers' compensation costs as
a result of its partnership with OSHA. In addition, since the time Calcon initiated partnership
efforts with OSHA in 1992, the company has reduced its rate of injuries and illnesses by over
eighty percent.

Another successful partnership is happening in Port Arthur, Texas where the Huntsman
Petrochemical Aromatics and Olefins Plant is a member of OSHA's Voluntary Protection
Program (VPP). Workers at this site repeatedly have credited VPP participation as one vital
factor contributing to improved management and employee relations. The plant's current three-year injury incidence rate is 74 percent below the industry average and its lost workday rate is 99
percent below average.

Many companies are commenting that their impression of OSHA has changed. For example, in
an article in Government Executive (November 1995), an employer in OSHA's Maine 200
program said, "When I have a question for OSHA, I'll call them." He said that when other
agencies call him, "I'll call my lawyers first[.]" Similarly, in New Jersey, the head of Barnard
Construction said, "I think OSHA is trying to get on a path of not just knocking people out of
business, but educating them." He went on to add, "Their attitude has definitely changed."
Occupational Hazards (October 1995). Comments like these demonstrate OSHA is making
progress.

In addition to partnership efforts, OSHA is making enforcement programs smarter and fairer by
spending more time at the most hazardous workplaces and less time at safer ones. OSHA is
using BLS data to identify industries with the highest injury and illness rates and is using
information gathered from our own Data Initiative to target inspections at specific workplaces.
In doing so, we have been able to discover serious violators in less time. At the same time,
employers whose attention to safety has already paid off in the form of lower injury and illness
rates are less likely to see an OSHA inspector.

Over the past several years, we also have measured results, where possible, by real improvements
in the lives of working people, such as reduced injury and illness rates. The five-year decline in
injury and illness rates is evidence that this combination of approaches is working.

Finally, OSHA has redoubled its commitment to small business. Immediately after I leave this
hearing, I will be participating in a forum that OSHA is sponsoring, entitled "OSHA and Small
Business: New Ways of Working." We invited stakeholders, including small businesses, trade
associations and unions; Congress members and their staffs; and the Small Business
Administration. The forum will showcase information and services available to help small
businesses improve workplace safety and health. The program will involve a half-day seminar
and a question-and-answer session with a panel of OSHA senior staff. We will cover several
topics, including how small businesses can receive compliance assistance and technical advice,
the role of the Small Business Regulatory Enforcement and Fairness Act, and partnership
opportunities. We also will be providing each of the estimated two hundred participants with an
information packet, including a CD-ROM disk, all of which will help them understand and
implement OSHA standards. In addition, for the first time, OSHA will be participating in
National Small Business Week beginning May 23. During that week, each of OSHA's regional
offices will hold forums similar to the one I am attending this afternoon.

The SAFE Act

Mr. Chairman, while I appreciate your cooperative spirit and hope that we can continue to work
together to improve worker safety and health, OSHA cannot support S. 385. Last year, the
Department stated that the Secretary would recommend a veto if the SAFE Act passed the
Congress. Despite the changes that have been made since then, we believe the new SAFE Act,
if enacted, would undermine the agency's ability to protect workers. Consequently, if S. 385
were passed, as drafted, the Secretary again would be forced to recommend a veto.

Third Party Consultation

S. 385 would establish a new system for OSHA to certify private-sector, for-profit, third party
consultants. Consultants would contract with employers to assist in the identification and
correction of safety and health hazards. Upon reinspection verifying that the required elements
of the consultation report have been satisfied, consultants would provide employers with a
certificate that would exempt them from OSHA civil penalties for one year.

OSHA opposes the third party consultation provision. First, OSHA has concerns about the new
"Purpose" section. Second, the consultation provision creates conflict-of-interest and
accountability problems. Finally, we are concerned that employers could, in effect, negotiate
compliance agreements that fail to meet the requirements of the OSH Act.

Purpose

While we strongly agree that employee safety and health are "of paramount concern,"
subsections two and three of this section contain wholly inappropriate and inaccurate opinions
that would undermine that spirit and could cripple the agency. These subsections would codify
the erroneous opinion that employers are incapable of compliance with OSHA regulations and
that OSHA is unable to enforce them. Some employers would attempt to use this provision to
avoid compliance.

Conflicts of Interest

Private safety and health consultants provide an important service and OSHA encourages
employers to use them as a valuable resource. OSHA also provides free consultation for small
businesses in each of the fifty states, the District of Columbia and three territories. However,
there are significant differences between employers using consultants voluntarily to self-inspect
and using them to purchase immunity from OSHA penalties. While OSHA encourages
employers to make use of non-OSHA consultants, the private sector is driven by the market, not
a mandate to protect employee safety and health. Therefore, the program would be vulnerable to
conflict of interest and accountability problems.

The third party consultation provision creates a powerful incentive for consultants to please
employers in order to create and maintain business. The consultant's business interest in
conducting inspections and granting penalty exemptions could place him or her at odds with the
interests of employee safety and health. This tension could ultimately cast doubt on the
legitimacy of the exemptions the consultant grants. The consultant would feel pressured to sell
penalty exemptions without rigorously inspecting workplaces in order to create business.
Likewise, employers may feel obligated to purchase unnecessary services in order to curry favor
with the consultant.

Accountability

The bill provides OSHA with little recourse against consultants whose improper certifications
put workers at risk. Under this provision, the only option OSHA would have for dealing with
consultants who commit fraud, collusion, malfeasance or gross negligence would be to expel
them from the program. Such serious offences warrant more than mere removal from the
program. Worse yet, OSHA would have no meaningful recourse against a consultant who was
overly generous in granting penalty exemptions due to incompetence or negligence. Even
though workers would continue to be exposed to hazards in the workplace, the consultant could
continue to grant exemptions and the certificates of compliance he or she issued would still
stand. If, on the other hand, OSHA finds that one of its compliance officers is not performing to
our standards, we have the ability to correct the situation. The disciplinary provisions of this
program are simply insufficient to redress the harm unconscientious consultants could inflict on
thousands of working Americans.

Employer-Negotiated Compliance

Section 3 would allow an employer whose workplace was found to have safety and health
hazards to negotiate compliance efforts and requirements with the consultant. The provision
requires that the employer and consultant agree to the terms and timeframes of the Action Plan.
Agreements necessitate compromise. While OSHA works closely with employers to create
mutually acceptable Action Plans, OSHA would not agree to a Plan that allows an employer to
remain out of compliance with the OSH Act for an unreasonable amount of time. On the other
hand, under the language of this legislation, it is entirely possible that an employer and
consultant would agree to an Action Plan in which the employer is not required to come into full
compliance with the OSH Act for many years. For example, an employer and consultant might
compromise on how quickly a guardrail must be fixed although employees would remain
exposed to a significant fall hazard in the meantime. OSHA cannot support legislation that
would allow an employer to avoid compliance and endanger workers.

Safety and Health Programs

OSHA is pleased that the new bill emphasizes the importance of safety and health programs by
including many elements of OSHA's SHARP program. However, this change does not
overcome OSHA's significant objections to the third party consultation provision.

The bill encourages employers to use third party consultants by offering them a one-year
moratorium on penalties for violations of the law. We strongly disagree with this approach. If
employers, acting in good faith, engage qualified consultants and correct all of the violations the
consultants find, they should have no reason to be concerned about penalties and fines. A
penalty waiver will be an incentive only to an employer who does not intend to put an effective
safety program in place and who does not intend to correct all violations. The SHARP program,
on which section 3 is modeled, does not offer a penalty waiver. Rather, in recognition of the fact
that the participating employer has received significant attention from OSHA, SHARP provides
for a one-year exemption from programmed inspections. If, however, OSHA is called in for a
complaint or fatality investigation and discovers uncorrected violations, the SHARP employer
will be subject to citation and penalties. I believe that employers will be less likely to comply
with the law if we tell them in advance that they may violate the law without fear of a penalty.
Just as individuals who receive assistance from professional tax preparers cannot claim
exemption from tax penalties, employers who enlist third-party consultants should not be granted
exemption from penalties resulting from OSH Act violations. As drafted, the bill would have
OSHA concede an inherent governmental responsibility to enforce workplace safety laws based
on a third party's determination.

In addition, the proposal in S. 385 would allow a company with an injury and illness rate twice
the average for its industry to receive a certificate of compliance and the resulting penalty
exemption. This is in stark contrast to the SHARP program, which denies participation to an
employer that fails to maintain a lost workday injury rate and injury incidence rate at or below
the national average.

I would like to take this opportunity to highlight several of OSHA's other concerns with the
SAFE Act. I will limit my comments to a few provisions that I find particularly troubling.
Among these are the technical assistance, worksite-specific compliance, and discretionary
compliance assistance provisions. My limited discussion of these few provisions of the bill,
should not be taken to imply that OSHA supports the remainder of the bill. But, in the interest
of time, I will forgo commenting on those issues in my testimony. The Department's
comprehensive analysis of the bill is attached to my testimony.

Worksite-Specific Compliance

Section 7 would require citations to be vacated if the employer can prove that its employees were
protected "by equally or more protective" means than those required by OSHA standards. This
new employer defense could turn every enforcement action into a time-consuming standards
litigation effort, imposing substantial burdens on agency resources and the court system. OSHA
standards would become mere guidelines open for debate whenever an employer wants to contest
OSHA standards, and routine enforcement cases would be turned into exercises in rulemaking.
For this and other reasons, courts have held repeatedly that employers must comply with OSHA
standards in the manner specified in the standards. As the United States Court of Appeals for the
Eleventh Circuit has noted, "An employer must follow the law even if it has a good faith belief
that its own policy is wiser."

Technical Assistance

Section 8 would amend the recently enacted provisions that govern OSHA's consultation
program. Just months ago, OSHA supported enactment of H.R. 2864, a bipartisan bill sponsored
by Congressman Cass Ballenger of North Carolina, that codified OSHA's consultation program
with enhanced employee protections. The new requirements authorize the Secretary to establish
and support cooperative agreements with the States, allowing employers to consult with State
personnel on the application of occupational safety and health requirements and voluntary safety-
and health-related efforts by employees. The law also allows the States to provide education and
training programs for employers and employees and requires States to ensure that on-site
consultation programs provide for employee participation.

We are proud that our cooperative efforts added OSHA consultation to the Act. We believe that
no amendments to the new law are needed at this time. The fee-for-service element of S. 385
would give priority to those who can afford to pay for consultation, not those who need it most.
Consultation is and should remain prioritized for small, high-hazard employers, not for large,
wealthy ones.

Discretionary Compliance Assistance

Section 11 would allow OSHA to issue warnings in lieu of citations, even for violations that have
killed employees, as long as the employer agrees to abate the violation promptly. This section is
unnecessary and could lead to reductions in employer compliance with the law. OSHA already
has the discretion to decline to issue citations in appropriate circumstances. For example, OSHA
has used this discretion to establish programs such as Maine 200. In addition, OSHA has
created a "quick fix" policy in which a compliance officer does not issue citations where the
employer immediately abates a hazard that was not likely to cause harm to an employee.

This provision sends a message that employers need not necessarily concern themselves with
potential OSHA fines for violating its law. If employers believe that OSHA's enforcement
ability is weakened, they will be less likely to comply with OSHA standards. Further, if
employers believe they get one free pass before receiving a penalty, many could be lulled into
complacency regarding safety and health requirements until finally being inspected. This
provision is particularly troubling because it could actually influence employers not to remain in
compliance with the OSH Act.

When I evaluate legislative proposals to amend the OSH Act, my first question is always the
same: will the change tend to make workers safer and healthier? There is no doubt in my mind
that a provision that removes an important incentive for employers to comply with the law fails
that test.

Mr. Chairman, I believe you have made a good faith effort to improve upon last year's version of
the SAFE Act by eliminating certain controversial provisions. Unfortunately, the remaining
provisions continue to raise serious concerns that would necessitate a veto recommendation by
the Secretary of Labor.

Protecting Workers Better

Mr. Chairman, there are a variety of ways to strengthen the protection provided to workers under
the OSH Act. We would, for example, support legislation that strengthens the whistleblower
protection of the OSH Act. It is fundamental that workers must feel free to inform their
employer or the government when dangerous working conditions threaten their life or safety.
There is a good deal of evidence, however, that many employees do not feel free to complain
about unsafe conditions and that too many employers feel they can retaliate against
whistleblowers with impunity. The provisions in place today in section 11(c) of the Act are too
weak and too cumbersome to discourage employer retaliation or to provide an effective remedy
for the victims of retaliation. A recent report by the Inspector General of the Department of
Labor found that "whistleblowers" frequently face retaliation for exposing unsafe or unhealthy
working conditions. A nurse at Skyline Terrace Nursing Home, for example, complained about
the home's lack of gloves, which are required to protect employees from bloodborne pathogens.
Four days after an inspection, she was fired in retaliation for the complaint. Another company,
Hahner, Foreman & Harness, Inc., fired an employee for refusing to go up in a gondola three or
four stories above the ground. The gondola had been malfunctioning and the employee believed
it to be unsafe. When the employee refused to risk his safety, his superintendent instructed him
that if he did not go back up into the malfunctioning gondola, somebody else would. He was
fired for his refusal. If you wish to strengthen the safety and health protection available to
workers, I suggest whistleblower protection as a place to begin.

In 1993, the North Carolina legislature, in a comprehensive review of our State plan following
the Hamlet fire, took several steps that greatly strengthened whistleblower protection. The
changes included a longer statute of limitations, a private right of action and a provision for
treble damages. I believe these changes have played an important part in the progress North
Carolina has made in reducing injury, illness and fatality rates over the last six years.

A second area this Subcommittee may want to consider is protections for public employees. The
OSH Act currently does not adequately protect Federal employees and, in states that do not
operate an OSHA-approved State plan, does not protect state and local employees (maintenance
workers, construction workers, firefighters, etc.). Consequently, with the exception of the 25
states that actively provide public sector coverage under State OSHA programs, OSHA has little
ability to require positive change on the part of public employers. As a consequence, this limited
authority hinders OSHA's success in reducing illness, injuries and fatalities on the job. Congress
last year enacted legislation supported by the Chairman and the Administration to subject the
U.S. Postal Service to OSHA penalties.

There are numerous examples of on-the-job tragedies that occurred primarily because safety and
health protections do not apply to public employees. These tragedies could have been prevented
by compliance with OSHA rules.

Finally, the Subcommittee could examine increasing the criminal penalty for an employer whose
willful conduct causes the death of an employee. We would urge that these violations not be
classified as misdemeanors, but felonies, which carry with them the possibility of incarceration
for periods in excess of one year. Classifying willful workplace safety and health violations that
lead to an employee's death as misdemeanors is woefully inadequate to address the harm caused.
Classifying such crimes as felonies would more justly reflect the severity of the offense.

Conclusion

While OSHA appreciates the Chairman's attempts to improve this bill, those attempts have not
overcome OSHA's opposition to the SAFE Act. By diminishing OSHA's enforcement authority,
the bill weakens worker safety and health. We believe the Subcommittee's efforts would be
better directed toward efforts on which a consensus is possible. Such discussion can most
effectively help achieve our mandated goal of safer and healthier workplaces.

Attachment

ANALYSIS OF S. 385

ATTACHMENT TO TESTIMONY OF CHARLES N. JEFFRESS
ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR

March 4, 1999

Section 3. Third Party Consultation Services Program

Section 3 requires the Secretary to establish a program to "qualify" individuals who could then
serve as consultants to employers to assist them in identifying and correcting safety and health
hazards in their workplaces. An employer who contracted and received such services and who
was declared by the consultant -- after the initial visit to the workplace, agreement on an Action
Plan, and a possible follow-up "reinspection" visit -- to be in compliance with the Act, would be
exempt from any assessment of a civil penalty under the Act for a period of one year, with
certain limited exceptions.

The Department of Labor strongly opposes this section.

Initially, although we agree that employee safety and health are paramount, the Department is
compelled to object to the new "purpose" that has been added to this section. The new "purpose"
statement would codify the erroneous opinion that all employers are unable to read, understand
and comply with the OSH Act. It would further codify the opinion that OSHA is unable to
satisfy the compliance needs of each employer and employee within its jurisdiction. The
addition of such sentiments to the OSH Act is, at best, inappropriate.

The incentives created by coupling the third party consultation provision with a penalty
exemption leave the program extremely vulnerable to conflict-of-interest and accountability
problems. At the most obvious level, a consultant paid by an employer would be likely to feel
pressured to approve the employer's program or to fail to recommend costly engineering controls
even when they were necessary to prevent an injury or illness. Likewise, businesses may feel
obligated to purchase unnecessary services proposed to them by their consultant in order to
ensure being granted a certificate of compliance. In addition, the provision permitting
employers and consultants to agree upon the terms of the Action Plan would invite abuses that
could result in seriously delayed abatement, if abatement is agreed to at all. Further, there is no
provision in the bill that would prevent an employer from utilizing one of its own employees, or
a former employee, to provide consulting services. Though this is no doubt not the intent of the
bill's authors, section 3 would in effect enable employers to "purchase" immunity from OSHA
inspections and penalties.

Reliance on the private sector for compliance declarations, coupled with exemptions from the
possibility of an OSHA inspection with penalties for those employers who receive such
declarations, would leave the agency without sufficient recourse if an inspection is necessary
within the exemption period. For example, even if conditions in a certified workplace had
undergone major change during the exemption period, a penalty could only be levied if OSHA
could demonstrate the occurrence of a "fundamental change in the hazards" of the workplace or
that the employer had not made a good faith effort to remain in compliance. The only large-scale
study to date that correlates worksite injury data with worksite inspection history over time has
shown that inspections in which penalties are assessed result in a significant reduction in injuries
at the inspected site for three years following the inspection, and that inspections without
penalties have no appreciable impact (Wayne Gray and John Scholz, "Does Regulatory
Enforcement Work? A Panel Analysis of OSHA Enforcement," Law and Society Review, pages
177-213 (July 1993)).

The new version of the SAFE Act has been modified to include a safety and health program
component. This is a positive addition to the bill, but does not cure flaws inherent in the third
party consultation proposal. OSHA's Safety and Health Achievement Recognition Program
(SHARP), part of OSHA's consultation program, exempts employers from a programmed
inspectiononly after the employer requests and receives a full-service consultation visit, and
works with the consultation program for a period of at least a year from the date of the initial
visit to correct and abate all hazards, implement a fully effective worksite safety and health
program and lower the lost workday and accident rates to a level at or below the national average
for their industry. Unlike S.1237 in the 105th Congress, S. 385 incorporates a requirement for
employers to implement a safety and health program before they can receive a certificate of
compliance. However, unlike OSHA's SHARP program, there is no guarantee that all hazards
will be abated before a certificate is granted. In addition, the ability of private, for-profit
consultants to provide penalty exemptions, rather than the exemptions from programmed
inspections that the SHARP program provides, gives those private, for-profit consultants power
well beyond any power granted to an OSHA compliance officer or a state consultant. SHARP
companies never receive blanket exemptions from penalties. Finally, under the SHARP
program, OSHA has the final say over whether companies should receive SHARP recognition.
This system provides an additional check to ensure that a workplace is safe and has an effective
safety and health program before it becomes exempt from a programmed inspection.

The Department remains concerned that the bill is completely silent about a consultant's
obligations when an employer is found NOT to be in compliance. This means that the consultant
then has the option of refusing to provide a declaration, which leaves the employer free to seek
out another consultant. While the bill now requires the consultant to identify violations of the
OSH Act and possible corrective measures, there is still no clear requirement that employers
abate the identified hazards or that consultants report to OSHA in the event of an employer's
refusal to abate. Moreover, because reinspections are not necessarily required, there is no way
for the consultant, employees or OSHA to verify either abatement or whether the elements of an
effective safety and health program have been fully implemented.

The Department is concerned that the bill could allow an employer to receive a certificate of
compliance even if it has not yet completed the process of hazard abatement. This would allow
an employer that is out of compliance with the law to be declared in compliance. The problem is
further compounded because an employer with a certificate of compliance who has not yet
abated hazards identified in the written plan could not be penalized by OSHA for one year.
Finally, unlike OSHA's abatement verification rule, the employer would not have to "inform
affected employees and their representatives about abatement activities" the employer had
promised to undertake. Elimination of a mandatory reinspection requirement worsens problem.
Without reinspection, an employer could obtain a certificate without having to show that it has
abated a single hazard. In the event that a reinspection does actually occur, there is no provision
for further action if the employer has not satisfied all the elements in the consultation report.

In addition, relying on the private sector for such certifications, while at the same time exempting
the employer's worksite from the possibility of a penalty, would deprive the agency of sufficient
"quality control" over both certifications and the safety and health audits performed by Federally-sanctioned, certified individuals. The only oversight granted to OSHA under this bill is
meaningless. The bill requires OSHA to maintain a registry of safety and health consultants it
deems qualified, but hamstrings the agency in the event problems occur. In addition,
maintaining a registry would place a substantial burden on the agency's already limited
resources. Those resources should be targeted toward making workplaces and workers safer, not
toward policing a new army of consultants.

These problems are compounded because the disciplinary action anticipated by this legislation is
insufficient to redress or deter the abuses for which S.385 creates an incentive. Removal of a
consultant from participation in the program is simply not enough to prevent or punish abuses
such as fraud or collusion. Further, the circumstances under which an employer or consultant
could be disciplined are so limited that the bill would permit a consultant to continue to
participate where injuries and illnesses continue to occur as a result of incompetence or simple
negligence. In addition, it appears that a consultant's failure to identify a hazard would exempt
the employer from penalties for that hazard.

Further compounding these problems is the bill's failure to clearly identify the minimal
qualifications for a consultant. For example, section 8A(b)(2)(A) identifies practitioners of
certain state-licensed occupations as "eligible to be qualified" as consultants, but neglects others
and does not specify what experience in hazard identification and occupational safety and health
eligible consultants must have. OSHA is further concerned that this provision requires states to
create licensing programs for safety and health professionals. We believe that this requirement
may impose a significant burden upon the states.

The Department is unaware of any concrete evidence that a third party certification program
would be successful. At the outset of this Administration, the idea of third-party audits was
raised at a meeting of OSHA's stakeholders, where it met with little enthusiasm from either labor
or business representatives. More recently, a State of North Carolina survey demonstrated a
resounding preference on the part of employers for an OSHA consultant over a private
consultant. Cost, as well as suspicion that the private consultant might attempt to sell an
employer unnecessary services, were among the reasons given in support of OSHA consultants.

Section 4. Establishment of Special Advisory Committee

Section 4 would require the Secretary to establish a new advisory committee consisting of
employees, employers, members of the general public, and an official from a state plan state.
The committee would advise and make recommendations to the Secretary concerning the
establishment and implementation of third-party consultation services programs under section
8A of the bill.

Section 7(a) of the current statute establishes the National Advisory Committee on Occupational
Safety and Health (NACOSH), which exists to make recommendations on matters relating to the
administration of the current Act. Mandating the establishment of a new advisory committee
dealing with the new consultation program in section 8A of the bill would duplicate part of the
existing jurisdiction of NACOSH and, as such, would be redundant and not in keeping with the
concept of reinvention and streamlining. In the event the Secretary needs to consult with experts
on the specifics of consultation programs, Sections 7(c)(1) and (2) of the OSH Act now give the
Secretary broad powers to hire consultants and experts, and to utilize the services of experts from
other Federal agencies and states. If the Secretary wishes to obtain advice through the
instrumentality of an advisory committee, she may establish such a committee pursuant to the
requirements of the Federal Advisory Committee Act.

Section 5 requires Federal employees who enforce the Act to meet the eligibility requirements
established under new section 8A(b)(2) for third-party consultants. In addition, these employees
must receive professional education and training every five years.

OSHA agrees that effective training of enforcement personnel is vitally important. OSHA and
the State Plans conduct a wide range of training programs to ensure that compliance officers
conduct fair and effective investigations.

The OSH Act is not industry-specific; it applies to a wide variety of workplaces throughout the
nation. Therefore, it has been OSHA's experience that individuals with broad professional
backgrounds become the best inspectors. During their first three years of employment, new
Compliance Safety and Health Officers (CSHOs) are teamed with experienced inspectors and are
given over 250 hours of training on investigative techniques at the OSHA Training Institute
(OTI) in Des Plaines, Illinois. Additional training is mandatory for experienced CSHOs at least
once every three years. Finally, whenever new standards are promulgated, OTI offers specialized
training in these standards.

As this discussion illustrates, OSHA does train and educate its employees, but not in a manner
that matches the bill's inflexible requirements. We are concerned that the bill is unclear about
which employees would be required to receive this training. For example, would the agency's
attorneys be considered "responsible for enforcing this Act"? We are further concerned about the
cost of providing the required training.

Finally, we note that the bill contains no specific training requirements for the consultants for the
program created under section 5, whose inspections and reports may result in employer
exemptions from civil monetary penalties.

Section 6. Expanded Inspection Methods

Section 6 of the bill would allow OSHA to investigate an alleged violation or danger by
telephone or facsimile. The bill also states that OSHA is not required to conduct complaint
inspections if "a request for inspection was made for reasons other than the safety and health of
the employees of an employer" or if OSHA determines that workers are not at risk.

OSHA has two primary concerns about this section. First, although investigation of complaints
by telephone, facsimile and other similar methods is desirable in many situations, these methods
should not replace a worker's fundamental right to an inspection. In the past two years, OSHA
has reduced the time from the filing of a complaint to the time hazards are abated by using
telephone and facsimile methods for investigating informal complaints. In addition, several
offices have experimented with these methods for investigating formal worker complaints, but
only where the complaining worker agrees. However, these methods should not be allowed to
interfere where a worker seeks to exercise his or her statutory right to an inspection.

Second, section 6 would allow OSHA to forgo a formal complaint inspection if it determines that
the complaint was made for reasons other than safety and health -- even if the information
provided by the complainant suggests that the workers in question may be facing substantial risk.
Again, the agency's determination as to whether to inspect following a formal complaint should
be based on the likelihood that workers are at risk -- not on the motivation of the complainant.
Where workers face substantial hazards, OSHA should act -- and is compelled by statute to act -- to protect them. Moreover, it would be very difficult for OSHA to determine the complainant's
motivation. This exercise would consume scarce agency resources and delay inspections.
Ultimately, the agency should continue to inspect where it has reasonable cause to believe that
workers are at risk.

Section 7. Worksite-Specific Compliance Methods

Section 7 would create an entirely new statutory defense to an OSHA citation, based on an
employer's demonstration that employees were protected by alternate methods equally or more
protective than those required by the standard the employer violated.

The OSH Review Commission and the courts have held repeatedly that when OSHA's standards
require employers to adopt specific precautions for protecting employees, employers must
comply in the manner specified. Under current law, employers have the right to select alternative
means of compliance when literal compliance is impossible or would pose a greater hazard to
employees. In "greater hazard" cases, the Commission requires an employer to show that a
variance has either been sought or would be inappropriate.

Under these rules, the contest rate has remained relatively low; less than ten percent of all
citations are currently contested. Under this provision of S. 385, however, virtually every
employer cited for violations of the OSH Act or OSHA standards could claim that an alternative
means of compliance was as effective as the standard in question. In effect, standards would
become guidelines, subject to challenge -- and potential waiver -- in every individual contested
case. This provision could seriously undermine OSHA's standards, turn every enforcement
action into a costly and time-consuming variance proceeding, and impose substantial burdens
upon agency resources, the OSH Review Commission, and the Federal courts.

Section 8. Technical Assistance Program

Section 8 amends the OSH Act's "Training and Employee Education" provision to require
cooperative agreements between OSHA and States to provide consultation programs. The
Department objects to amending the new consultation law Congress passed less than a year ago
with bipartisan support after extensive negotiations between Congress and the Department ((P.L.
105-197, 112 Stat. 638 (July 16, 1998) (the "Occupational Safety and Health Administration
Compliance Assistance Authorization Act of 1998")).

We are particularly concerned with further amending the program in the way contemplated by
section 8. Under section 8, the Secretary must establish a pilot program in three states for a
duration of up to two years, the purpose of which would be to test a fee-for-service system. The
fifty state agencies that already administer the consultation program have expressed very strong
reservations about charging fees in the consultation program. The Administration shares these
concerns. Those who could pay would be visited first, defeating the philosophy that this service
is aimed at small or highly hazardous businesses that cannot afford to hire other consultants.

Section 9. Voluntary Protection Program

Section 9 attempts to codify OSHA's Voluntary Protection Program, requiring the Secretary to
establish cooperative agreements with employers, who would create and maintain comprehensive
safety and health management systems. The bill requires enhanced OSHA efforts to include
small businesses in the VPP. Participation in this program would result in exemptions from
inspections and certain paperwork requirements.

OSHA has supported codifying the VPP program, but we do not support this provision as
drafted. The VPP has traditionally been, and should remain, a program for
work sites, not
employers. Although there are references to "the worksite" in the section, this vital mainstay of
the program must be emphasized. OSHA is also concerned that codification could jeopardize the
high standards of the program currently in operation. As drafted, this provision does not reflect
the idea that the VPP program is reserved exclusively for those employers who have
demonstrated the highest commitment to worker safety and health. Ideally, any codification of
this program should limit participation to employers who have truly superior safety and health
records, but should allow OSHA the flexibility to define (and modify as necessary) the specific
criteria for participation in the program. We further note that the bill does not include a program
requirement for VPP participants to provide meaningful employee involvement in safety and
health matters, which we believe to be an important component of the program. These changes
must be made before OSHA would withdraw its objections.

Section 10. Prevention of Alcohol and Substance Abuse

Section 10 authorizes the Secretary to test employees and management for drugs and alcohol
following any work-related fatality or serious injury. It also permits employers to institute their
own testing programs conforming to HHS and Federal workplace guidelines. Testing is
permissible on a for-cause basis, as part of a scheduled medical examination, where an accident
involving actual or potential loss of human life, bodily injury, or property damage has occurred,
during participation in a drug treatment program, or on a random basis.

OSHA strongly supports measures that contribute to a drug-free work environment and
reasonable programs of drug testing within a comprehensive workplace program for certain
workplace environments, such as those involving safety-sensitive duties, and which take into
consideration employee rights to privacy. However, OSHA is concerned that it may not have the
resources to oversee drug and alcohol programs.

Section 11. Discretionary Compliance Assistance

This section provides that the Secretary may issue warnings in lieu of citations where the
violation has no significant relationship to safety or health or where the employer has acted in
good faith to promptly abate the violation. The Secretary may not exercise this discretion where
the violation has a "significant relationship to employee safety or health" or where the violation
is willful or repeated.

Currently, the OSH Act provides that OSHA "shall" issue a citation for each violation it
discovers during an inspection. This provision would change this provision to "may." As a
practical matter, the impact of this proposed change is unclear. Federal case law demonstrates
that OSHA possesses a greater degree of prosecutorial discretion than was recognized in the
early years of the agency's existence. The agency has discretion under existing law to establish
programs in which it does not issue a citation for every violation it finds. For example, OSHA
has used this discretion to establish programs such as Maine 200.

Among other things, OSHA is particularly troubled by paragraph 3(B), which allows the
issuance of a "warning in lieu of a citation" for violations that the employer "acts promptly to
abate[.]" Even though it allows OSHA the discretion to issue citations in such circumstances,
this provision may signal employers that they need not take preventive steps to protect their
workers prior to an OSHA inspection. As such, this provision could undermine both the
preventive purpose as well as the deterrent effect of OSHA's enforcement program.

Prompt abatement of hazards should be encouraged, but it should be encouraged through penalty
reductions, not by eliminating any citations whatsoever for violations. Otherwise, employers
who make good faith efforts to protect workers before an OSHA inspector arrives at their door
will be treated the same as neglectful employers who have ignored their workers' safety until the
inspection.

Finally, the limitations on the Secretary's discretion are so narrow that they could lead to
outrageous results. For example, the Secretary's discretion is not limited to cases in which an
employer has shown good faith by implementing a safety and health program or in which no
employee has been killed or seriously injured because of the employer's violation. Rather, the
bill authorizes the Secretary to issue a warning in lieu of a citation if the employer "acts promptly
to abate the violation" even if the employer has a long history of previous violations and causes
the death of several employees.

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

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